We won our appeals case!!
If you haven’t been following OSD&LN’s appeal of the City’s Missing Middle (MM) ordinance (7160), see the timeline at the bottom of this page. Remember, MM deals with infilling older existing low-density neighborhoods with larger buildings like tri-plexes, fourplexes, single-room occupancy buildings (rooming houses) and up to 12-unit condos, courtyard apartments and cottage developments.
The moment we have been hoping for happened on Wednesday, July 10th: the Growth Management Hearings Board ruled in favor of OSD&LN in our appeal of the City’s MM Ordinance. What does this mean? The Board ruled:
1.To invalidate the MM Ordinance.
2. That the City did not adequately fill out a SEPA checklist (this anticipates negative impacts of a project). The City wrongly assumed that a SEPA list was not required for a large policy change like the MM, but was only meant for brick and mortar projects. The board disagreed and required the City to complete a realistic new SEPA checklist.
3. That the City showed no evidence it had done research to anticipate problems with MM for on-street parking, environmental impacts, public facilities like sewer and storm drainage, or how the City budget might be affected by the costs of the MM. This was true, even though information was available to do these analyses.
4. That the MM can cause housing densities over the limits of 8 and 12 units per acre. Some provisions, like density bonuses, uncounted units and exceptions on larger lots, could bring densities of 14,16, 24 or 36 units per acre, depending on the housing type.
5. That MM’s significant reduction of off-street parking requirements could be unworkable, and degrade the character of existing neighborhoods.
To read the full decision (47 pages) read the final decision.
Since this decision was made, the City has appealed it 4 times and lost. An explanation of the latest decision is found here.
Realize that, without the MM, ADU’s and tiny houses are still legal to build, as they were before the MM. Also, MM doesn’t claim to create affordable housing. OSD&LN hopes the new plan will.
Missing Middle Appeals Case Timeline: OSD&LN vs City of Olympia
For those who are interested, this is a timeline, with links to a few legal briefs, of the Olympians for Smart Development and Livable Neighborhoods’ (OSD&LN) appeal of the Missing Middle (MM) ordinance in Olympia Washington. To read some of the briefs mentioned, click on the highlighted text.
The City of Olympia formally started the Missing Middle process in January of 2017. From March through October, a work group, appointed by City Planning staff, provided input on infill options. The work group acted as a sounding board, but had no formal decision-making role.
City staff released the MM proposal in November of 2017 and immediately followed it with an online survey and two open houses. There was no public process allowing interested Olympia residents, or neighborhoods, to participate in the creation of MM. In our opinion, MM did not follow numerous policies in the 2014 Olympia Comprehensive Plan.
The Planning Commission did hold a hearing to solicit public opinion on the MM proposal 3/19/18.
The State of Washington uses the State Environmental Policy Act (SEPA) to evaluate the impacts of new government policies or new construction projects. Impacts can apply to the natural environment, infrastructure, historic resources, or displacement of people. A SEPA checklist is done to screen for possible effects from a new proposal. When impacts are found or projected, an analysis called an Environmental Impact Statement (EIS) is completed. The EIS considers these impacts and proposes measures that can be taken to mitigate or lessen the possible effects. Part of this process includes he development of alternatives to the proposal being evaluated.
Description of the MM Appeals Process:
In February of 2018, the City of Olympia issued a Determination of Non-Significance (DNS) for the MM plan. The DNS implied that the MM would have no significant impacts. An EIS would then not be needed, despite the proposal making significant changes to land use regulations in low-density residential neighborhoods. In many existing neighborhoods, larger units, such as triplexes, fourplexes, courtyard apartments and SROs (rooming houses) were newly allowed.
• On 3/20/18 OSD&LN appealed this decision, paying the required $1000 to the City to do so.
• The City filed a Motion to Dismiss the OSD&LN appeal on 4/27/18
• OSD&LN filed a Response to the City’s Motion to Dismiss on 5/7/18
• On 5/16/18, City hearings examiner Mark Scheibmeir dismissed the OSD&LN appeal, determining that we had no standing.
• On 8/6/18, the Olympia Planning Commission signed off on the largely unchanged MM proposal
• On 11/13/19, the City Council passed the MM proposal as Ordinance 7160 (MM Ordinance).
For the next month, OSD&LN evaluated whether we wanted to carry on a legal appeal of the City MM Ordinance before the Washington Growth Management Hearings Board (GMHB). The GMHB is governed by the Revised Code of Washington as the body that can determine whether the City ordinance is in keeping with SEPA and the Growth Management Act. GMHB then determines appropriate actions to be taken after a determination.
• On 1/9/19, OSD&LN filed a Petition with the GMHB. The petition takes the form of questions. OSD&LN posed two questions:
Does the MM violate SEPA?
Is the MM inconsistent with, and fail to implement, the 2014 Olympia Comprehensive Plan?
• On 1/28/19, the GMHB issued a pre-hearing order, laying out dates and procedures for the case.
• On 2/25/19, the City filed a Summary Judgement Motion to Dismiss OSD&LN’s SEPA appeals
• Also on 2/25/19, OSD&LN filed a Motion for Summary Judgement, asking the GMHB to:
Invalidate the MM Ordinance for failure to follow SEPA
To remand the City to redo the SEPA checklist, and then to do an EIS
• On 3/6/19, OSD&LN filed a motion, asking the GMHB to deny the City’s Motion to dismiss of OSD&LN’s SEPA appeal
• On 3/29/19, the GMHB issued a decision:
Denying the City’s Motion to dismiss OSD&LN’s SEPA appeal
Granting OSD&LN a summary judgement decision on SEPA
Determining that the City had violated SEPA and needed to redo the SEPA checklist
Deferred the decision on the validity of the MM Ordinance
• On 4/10/19, OSD&LN filed its Opening Brief, which detailed their opinion regardinghow the MM Ordinance was inconsistent with, and failed to implement the Comprehensive Plan,
• On 5/1/19, the City filed a Response Brief, commenting on OSD&LN’s opening brief, and presenting the City’s view of the MM Ordinance.
• On 5/17/19, OSD&LN filed a Reply Brief, where it commented on the City’s response brief
• The GMHB hearing was held 5/23/19 to allow both sides to argue their points and to answer questions the GMHB might have.
• A final decision will be made by the GMHB on 7/10/19